Thirtieth Amendment of the Constitution (Treaty on Stability, Coordination and Governance in the Economic and Monetary Union) Bill 2012 - Committee Stage and Remaining Stages

Can we have some order, please? We want to proceed with the rest of the debate. Perhaps you could have your conversations outside the Chamber. Thank you. Before Committee Stage commences I wish to deal with a procedural matter relating to Bills to amend the Constitution. The substance of the debate on Committee Stage relates to the wording of the proposed constitutional amendment contained in the Schedule to the Bill. The sections of the Bill are merely technical. Therefore, in accordance with long-standing practice the sections are postponed until consideration of the Schedule has been completed. I propose that consideration of sections 1 and 2 of the Bill be postponed until the Schedule is disposed of. Is that agreed? Agreed.

I have made it clear that I will not be supporting the treaty. I have tabled an amendment to the wording. I have some concerns about the wording. Although I am opposed to the treaty, this does not mean I should not seek to lessen the damage in terms of the wording.

I examined the wording of other European Union treaties. The wording proposed for this treaty is similar to three previous European treaties, the accession treaty, the Maastricht treaty and the Lisbon treaty. The Maastricht and Lisbon treaties were consolidating measures to amend the accession treaty. The accession treaty dealt with the ceding of some of our sovereignty, the recognition of the European Union Court of Justice and governance arrangements for the European Union. That is putting the matter at its simplest. However, they also represented something beyond that. They were about connecting us to those institutions. The Maastricht and Lisbon treaties were acts of consolidation and had to carry forward the same wording. One passage included in those treaties states:

No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Communities, or prevents laws enacted, acts done or measures adopted by the European Union or by the Communities or by institutions thereof, or by bodies competent under the Treaties establishing the Communities, from having the force of law in the State.

The language we use says everything about the pecking order in terms of what we have in the Constitution. For example, the questions on the Nice treaty, the Single European Act and the Amsterdam treaty had simpler wording, asking whether we would agree to ratify the changes. However, they did not have the additional wording, including the passage above. Essentially, those treaties were below the accession treaty in the pecking order. The three treaties I have referred to, the accession treaty, the Maastricht treaty and the Lisbon treaty, are the heavyweights. Heavyweight treaties have heavyweight ramifications and therefore it was necessary to have heavyweight wording.

The European Union is a rounded and complex set of institutions. There are democratic and legal components. However, an intergovernmental treaty is a different entity. There is a need for a constitutional referendum in the case of a European Union treaty. However, this is not a European Union treaty, it is an intergovernmental treaty. We are not being asked one question but two questions. The first question should, following the simple wording used in, for example, the Single European Act, have as its answer something like, "We agree to ratify this treaty". However, we are being asked something beyond that. We are being asked to put this treaty on a par with the European Union accession treaty and the subsequent consolidating treaties, yet it has no democratic component to it and the legal competence of the European Court of Justice is clearly within the European legislation. It is a matter of serious concern that this treaty is being placed shoulder to shoulder in the pecking order with the heavyweight European treaties. Article 5 of the Constitution states that Ireland is an "independent, sovereign, democratic state". It has been pointed out to me in the past that the Constitution must be read harmoniously when it comes to inserting additional text. In this case, the Constitution cannot be read harmoniously because what is being inserted amounts to a paradox. If we are a democratic State we should not agree to a wording that cedes competences to an intergovernmental entity. To do so is in itself, apart from any other consideration, anti-democratic. There is a paradox there.

Citizens, in their wisdom, agreed to share sovereignty with the European Union, which is an evolving entity. The objectives of the European project are the promotion of economic, social and territorial cohesion and solidarity among member states and the building of a highly competitive social market aimed at full employment and social progress. This intergovernmental treaty prevents that from happening because there is a particular economic philosophy driving it. Jürgen Habermas, a German philosopher, put it well when he said that Europe has embarked on a new kind of integration where intergovernmentalism takes the lead in what he calls an arrangement for exercising a type of "post-democratic, bureaucratic rule". That is precisely the point I am making, that the treaty is anti or post-democratic. The wording we are proposing to insert in the Constitution in this respect is not consistent with our claim to be a democratic State.

There have been claims from many quarters to the effect that we have lost our sovereignty as a consequence of the EU-IMF bailout. That is not accurate. We have lost the ability to fund our services and repay our debts, but we have not loss our sovereignty. It is dangerous to claim otherwise because when people consider that something is gone they do not fight for it. It is important to make that point. There are people throughout Europe making the case in regard to the lack of democracy attaching to what is proposed. For instance, a former German Minister of Justice, Dr. Herta Däubler-Gmelin, has described the treaty as crossing a red line by taking away the competence of national parliaments to determine national budgets. It is interesting that this view is coming from Germany. Under the treaty, the European Commission and Council will gain power over national budgets without the involvement of the European Parliament or national parliaments. This will have the effect of diluting voter influence on economic and social policy in Europe. Dr. Däubler-Gmelin is arguing that this is repugnant to the German constitution.

Another cause for concern is that it is not at all clear whether the European Stability Mechanism can be ended, as Professor Gerry Whyte observed at one of the meetings of the Sub-Committee on the Referendum on the Intergovernmental Treaty. Dr. Däubler-Gmelin is essentially saying the same thing. If this amendment is inserted into the Constitution we cannot, in five years' time when our circumstances will hopefully have improved, have another constitutional amendment seeking to delete it. Ratifying the referendum will cede important governmental competences to an intergovernmental entity. There is nothing written into the treaty to put the brakes on that or reverse it. As such, we are set on a dangerous course.

On the economic aspect, we tend to view national debt in household terms. However, while households have a finite life span, countries do not, which is why the latter roll over debt. I do not want to get into the economic arguments because I have had an opportunity to voice my concerns in that regard both at the sub-committee and on Second Stage. As I have outlined, the wording of the amendment would have the effect of placing the proposed intergovernmental entity on an equal footing, under the Constitution, with the European Union. In addition, it is a one-dimensional proposal from which the whole social and democratic component is absent. That is very dangerous in its own right.

I am opposing Deputy Catherine Murphy's amendment. On the basis of the advice from the Attorney General, the Government has agreed the text of the proposed amendment to the Constitution, the purpose of which is, first, to ratify the stability treaty and, second, to provide appropriate constitutional cover for implementing measures necessitated by the treaty. We in Ireland have a long and proud tradition of honouring our international treaty commitments and the Attorney General has advised that the current wording is the most appropriate means of ensuring we can do so in this case. As I explained, it is our view that both elements of the proposed wording are essential. They reflect the constitutional template already in the Constitution for the implementation of European Union law into Irish domestic law, which has served us well. The proposed wording does not have the effect of making the treaty part of our Constitution. Rather, it enables us to ratify the treaty and to take the necessary implementing measures.

Deputy Murphy argues her case on two essential bases, the first being that this treaty is of lesser weight or order than earlier EU treaties. She makes the point that the Amsterdam and Nice treaties do not contain a sentence similar to the one she is seeking to delete - the necessitated sentence, if I can call it that - whereas the accession, Maastricht and Lisbon treaties do. The reason for this is not that the Amsterdam and Nice treaties were somehow lower in status than other treaties but that they were purely amending treaties with no stand alone provision, whereas the stability treaty is a stand alone treaty, like the Maastricht treaty, although it is closely linked to the EU treaties.

The Deputy also argues that because it is an intergovernmental and not an EU treaty, we do not need to make this commitment. She points out the nature of this particular treaty in making her case for the amendment. Although this is an intergovernmental treaty, a key concern for Ireland throughout the negotiations was to ensure it stuck as closely as possible to existing EU treaties and law and provided for appropriate involvement for the EU institutions. We are strong supporters of the Union and that was an important issue for us in the negotiations.

These concerns are reflected in Article 2 of the stability treaty which makes it clear that the treaty must be in conformity with the European Union treaties. There are many references to existing European law throughout the treaty. The treaty also provides for the involvement of the European Union institutions and a role for the Houses of the Oireachtas. This role mirrors that which was introduced for the Houses of the Oireachtas by the Lisbon treaty, which was an innovation that was widely lauded, even by those who otherwise were not supportive of that treaty. I oppose Deputy Catherine Murphy's amendment for these reasons.

The Tánaiste has stated Ireland has a tradition of including wording to ensure it meets its European or international obligations. However, Members also have domestic obligations to citizens and the lack of a democratic component to this intergovernmental entity conflicts with such obligations. I consider this democratic element to be extremely important. I am fairly sure it was the Lisbon treaty that enhanced the role of the European Parliament in strengthening democratic oversight of the European Union. This happened because it was generally acknowledged that people were moving away from or were less supportive of the Union. I acknowledge this is partially due to people, including Members, blaming the European Union for particular matters when it was inappropriate to so do. Nevertheless, while an enhanced role was provided for the European Parliament to strengthen the democratic component of the European Union, this measure proposes going into reverse gear in this regard. The entire democratic aspect is pretty much being replaced by bureaucracy and the stronger countries in Europe which, essentially, are dictating what should take place. While I do not believe the Tánaiste and I will agree on this issue, I emphasise strongly my belief democracy will lose today, even if the people have an opportunity to vote in the referendum. This is because the wording, if passed, will dilute the right of Irish people to determine matters because this provision is open-ended. For this reason alone, I have concerns about the wording.

I oppose the amendment. While I respect the bona fides of Deputy Catherine Murphy, essentially those who are opposed to the treaty will have an opportunity, once the Bill goes through the Houses of the Oireachtas, to campaign and vote against the treaty. However, the task of Members is to ensure the proposal to be put to the people is clear. It is equally important for those who wish to vote for or against the proposal that it is clear and means something. There is no point in the Oireachtas putting together a proposal that is uncertain or lacking in clarity. Were a proposal to be put to the people that they simply ratify the treaty without having the additional provision for the avoidance or doubt, namely, that no provision of the Constitution operate to invalidate that to which they were agreeing, it would only be a half-proposal. It is important that Members are clear about their role in this regard. While they can debate the merits or otherwise of the treaty, they are agreeing to put a proposal to the people who will decide. Their role is somewhat more limited, although they obviously can debate the treaty on its merits, as they did on Second Stage. However, in this instance, their major task is to agree to what should be the proposal on which the people will decide.

I argue, with respect, that it would be irresponsible to put to the people a proposal that lacked clarity and left open to doubt the question of whether, were they to vote "Yes", it would have the intended impact, that is, that the treaty would be ratified and that no other provision of the Constitution could be invoked to invalidate it. Almost the exact wording of this provision already is contained in Article 29.4.10° of the Constitution. I believe Deputy Catherine Murphy referred to it, although I did not hear the beginning of her contribution. The provisions of Article 29.4 10° state, "No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Communities," etc. The Deputy is correct to state this is not a European Union treaty, for reasons of which Members are aware. Nevertheless, it is an international agreement and still a treaty. If the people are to agree to it and vote "Yes", the Oireachtas must bestow on it the same solidity as that has given to other measures. I completely respect the bona fides of the Deputy, but in truth, this is a statement of opposition to the treaty masquerading as an attempt to modify it a little to make it less offensive in some way. It is not offensive to tell the people that the Oireachtas proposes to include this provision in the Constitution. Nor is it offensive for Members to further propose there be no doubt left open in anyone's minds but that were this measure to be inserted into the Constitution, it would stand and have the force of constitutional law. That is what the Government seeks to achieve in this regard.

I also am familiar with the writings of Mr. Habermas who has written much apart from the statement read out by the Deputy. To the extent that people are legitimately concerned that the European Union has been overly bureaucratised and centralised and that there is a democratic deficit, I made the point last night on Second Stage that this must be addressed through political work. This means people must engage with the problems in Europe and others in Europe. In this context, I note the Acting Chairman, Deputy Peter Mathews, and I have done this ourselves on one occasion. People must take the opportunities through their political parties, the political families in Europe in which they are involved and so on to engage in and carry out political work. I also make this point, with respect, to Sinn Féin Members. There is no point in walking away from these issues by throwing one's hands in the air and stating it is all about bureaucrats or people coming to get us or seeking to threaten us and so on. This is political work from which Members should not walk away.

The Deputy is missing the point I understand Deputy Catherine Murphy to be making. Whatever one might have thought about other treaties passed within the European Union - quite a number of Members have opposed many aspects of those treaties and campaigned against them - there is at least a countervailing democratic mechanism. There are avenues through which the citizens of this country, even if sovereignty has been pooled at a European-wide level, can challenge the implementation of those policies. However, this intergovernmental treaty is different because there is no democratic countervailing avenue.

I have read it several times and moreover, I have it to hand. The cheap shots should be avoided, as the Tánaiste and I simply have different takes on it. There is no such mechanism and one should be clear that the paranoia, as the Government may perceive it, of Members on this side of the House has considerable evidence to back it up. I refer to the comments of Chancellor Merkel at the end of the negotiations, when she stated "the debt brakes will be binding and valid forever. Never will you be able to change them through a parliamentary majority." It could not be clearer.

The treaty will do away with democracy in the context of fiscal and economic policy. I would have thought that it will continue the process of eroding democracy. At least with previous treaties - including Lisbon - we still had open to us, through the framework of the European Union, avenues to challenge that erosion. This is not the case with the fiscal treaty. Consequently, the heavyweight wording to which Deputy Catherine Murphy referred is cause for a good deal of concern.

I accept that we may disagree on what might be the implications of the treaty. In the context of the correction mechanism, for example, the phrase "on the basis of common principles to be proposed by the European Commission, concerning in particular the nature, size and time-frame of the corrective action to be undertaken" is included in the treaty. These are very significant powers and if the correction mechanism is triggered, the Commission will be able to dictate the nature, size and timeframe of cutbacks, structural reforms to the economy or whatever. What will happen if these conflict with imperatives within the Constitution? I refer, for example, to imperatives which declare that the natural resources of the State must remain the property of the people. What will happen if the Commission decides that one of the structural reforms required in this country will be the privatisation of our national resources? Under the treaties pertaining to the European Union, there would at least be mechanisms through which we could politically challenge such a decision. However, what is before us is an intergovernmental treaty which simply relates to imposing fiscal rules and giving powers to the Commission to dictate courses of action in certain circumstances. There is no democratic mechanism within the treaty which would allow us to challenge any decisions that might affect us. The key point is that the will of the Commission will just be imposed.

As Deputy Catherine Murphy stated, we are against the treaty. In so far as the treaty's ratification is concerned, however, we are of the view that if it conflicts with imperatives in the Constitution, then we should have the ability to challenge its implementation.

Deputy Boyd Barrett's final point is clearly incorrect. In the context of the automatic correction mechanism, the Commission is not being given a role whereby it can effectively dictate policy. What will happen will be that it will propose the common principles to which the states party to the treaty will be obliged to agree. These mechanisms are defined in a way whereby they will be agreed between the states and the Commission. I just wanted to clarify the position in this regard in the event that any doubts may have arisen. The question of the Commission telling us what we should do with natural resources, etc., is something of a red herring in the context of this debate.

I thank Deputy Catherine Murphy for tabling her amendment because it has challenged the House to address the content of the Bill. At a level of principle, when Ireland ratifies a treaty it must honour it. As a country, we have a very proud record of honouring our international obligations and long may this continue. It would be quite invidious to pass a constitutional amendment which, in effect, would state that we would ratify the treaty but which would also indicate that we were not making provision to honour it. That would be quite a dishonest approach for us to take in the conduct of international relations. I appreciate the distinction to which Deputy Catherine Murphy drew attention earlier, namely, that under the Amsterdam and Nice treaties there was not an express provision in this regard. However, the latter was because those treaties amended an existing treaty rather than being stand-alone mechanisms.

The argument to the effect that the treaty does not make provision for democratic accountability is simply not true. Article 12, for example, makes provision for a range of approaches to democratic accountability. The governance arrangements have probably not received a great deal of attention in the debate that has taken place in respect of the treaty to date. The treaty does not merely restate the rules relating to the euro, it also contains provisions in respect of the governance of the euro area. These provide, for example, for meetings of Heads of State and Government at summit level in order to discuss issues relating to the euro. Article 12 also makes provision for the involvement of the European Parliament. The treaty contains a clear democratic accountability provision under this article. In addition, Article 13 provides for the committees of national parliaments - in our case this will be the Joint Committees on European Union Affairs and Finance, Public Expenditure and Reform - to play a role in respect of the governance of the euro area and also in discussions on budgetary policy and other issues covered by the treaty.

Although this aspect has probably not received a great deal of attention to date, I would summarise by stating that the treaty actually strengthens the democratic involvement of national governments because Heads of State and Government will meet at summit level to discuss issues relating to the euro. It also makes provision for the involvement of the European Parliament and crucially - this will be of interest to the Members of this House - the committees of national parliaments.

The one thing which became clear during the entire process of negotiations which led to the drafting of this treaty is that Heads of State and Government are not equal. Deputy White stated that we can work through the political families. It must be recognised that Ireland is a minnow in respect of this matter and it is not in a position of equality with other states. The European Union was built on solidarity and a level of equality and the veto was part of the protections for small countries. We do not have a Europe of the equals. I recall the Tánaiste stating some years ago that there is a world of difference between influence and power. The powers of the European Parliament are not going to be enhanced under the treaty. It may well be that it will be able to exert some influence but there is a difference between the power and influence. I do not need to explain the nature of that difference to the Tánaiste.

We are being asked to make provision for the treaty at constitutional level because that is the level at which Angela Merkel wants the matter to be determined. This will mean that the treaty cannot be watered down and that its provisions will be copperfastened. As previous speakers indicated, this means that it will be there for evermore. Essentially, the Government did not jump and down in seeking to have the treaty incorporated within the Constitution. On the day on which the announcement to the effect that a referendum would be required was made, the body language on the Government side appeared to indicate that the latter was not what was desired. I am sure, however, the Tánaiste will state that this was not the case. It does not seem to have been desirable. We are moving towards a position where there will be a conflict with the rights of the citizens of this State and democracy.

I will respond to the Tánaiste's point about the democratic component, as he is being somewhat disingenuous in his reference to the role of the European Parliament. Paragraph 5 of Article 12 states: "The President of the European Parliament may be invited to be heard". The phrase is "may" rather than "will be". That is the extent of the involvement of the democratic part of the European Union, which we all know does not have much democracy.

Yes, it is an account of what is being done. We can like it or lump it. National parliaments are talking shops in my interpretation of Article 13, which states:

As foreseen in Title II of Protocol (No 1) on the role of national Parliaments in the European Union annexed to the European Union Treaties, the European Parliament and the national Parliaments of the Contracting Parties will together determine the organisation and promotion of a conference of representatives of the relevant committees of the national Parliaments and representatives of the relevant committees of the European Parliament in order to discuss budgetary policies and other issues covered by this Treaty.

There are no other powers so they are a talking shop. They will meet to discuss the issue. It is a democratic fig-leaf.

This is about being dictated to by the big states with a simple majority. That is what we are signing up to and there is no countervailing democratic mechanism, as we noted. Consequently, Deputy Murphy's amendment is on the mark. She is considering the implications of unintended consequences.

We will debate over the coming weeks the potential consequences of the treaty. If the Government gets its way the treaty will be ratified and we will discover those implications but what if the consequences are different to what those on the "Yes" side imagine? What if they are more far-reaching and lead to a position where the Commission will dictate matters and demand certain types of structural reform in our economy, including issues that may impinge on imperatives within the Constitution? What if the Government is wrong and where is the democratic avenue for us to deal with the unintended consequences that may arise? With this wording, there is none because all provisions of the Constitution are overridden in ratifying the treaty. This is against a more simple process where we can ratify the treaty but if we later find it conflicts with the Constitution, there is some recourse for challenge. That is the point of Deputy Murphy's amendment, which is right in its approach.

Giving my colleague, Deputy Boyd Barrett, the benefit of the doubt a few minutes ago with the question of whether he was "paranoid", to use his own word, I am nevertheless coming quickly to the conclusion that he is paranoid. He has constantly used variations of the word "dictate" in arguing the Commission is "dictating" matters. That has never been the pattern of our experience in the European Union. In every referendum debate for as long as I remember, it was always argued that because we were a small country, we would be overruled, lose out, pushed aside and our voice would not be heard. When has that occurred? I ask the colleagues opposite or anybody else to help me with an example of any time in the past 40 years when Ireland's interests, argued and articulated by the Government and representatives in Europe, were defeated, excluded and overridden. When did this happen?

The only way such a question can be met is with silence because it has never occurred. The constant playing with words like "dictate" in reference to the Commission is wrong. It may interest Deputy Boyd Barrett and others to know that the people in the Commission are people not all that different from him and me. Generally speaking, they are reasonably intelligent and well informed. We can either agree or disagree with them. The notion that we will be the victims of some pattern of interest being overridden by these people is infantile. I am not saying everything will be plain sailing and that everything that an Irish Minister or representative argues in Brussels will necessarily win through.

This is a process and not a question of being dictated to. People should grow up and understand how these processes come about. It would be great to have some of the people involved in this argument getting stuck into some of these discussions and gaining experience in fighting for Ireland's interests rather than constantly arguing that the Europeans will dictate to us and do us down. It can be frustrating to hear such arguments and it is misleading the people, as they do not tally with past experience.

The Tánaiste can correct me but my understanding is that if the people pass the referendum, they will have agreed to put existing rules into the domestic law of the State. Deputy Murphy argued that the rules would be inserted into the Constitution at the insistence of Chancellor Merkel but that is wrong. I do not know any more about the debate which took place other than what I read in the newspapers but as I understand it there was an argument that the debt brake and deficit rules should be put into the constitutions of the various countries. That was not agreed in the end and instead there was a consensus that the rules would "take effect in the national law of the Contracting Parties at the latest one year after the entry into force of this Treaty through provisions of binding force and permanent character, preferably constitutional, or otherwise guaranteed to be fully respected and adhered to throughout the national budgetary processes". I understand that to be a compromise and that form of words was reached in circumstances where people were not willing to put the details of a debt brake and deficit rules into the Constitution.

I would have objected to such a process of involving deficit rules and debt brakes into our Constitution as they do not belong there. They will not be inserted into it. If the people vote "Yes" in this referendum, there will be a permissive provision inserted into the Constitution allowing the Oireachtas to introduce legislation to domestic law. That can be debated in this House and passed or otherwise by the democratically elected Members of these Houses.

With all the talk of being dictated to and excluding parliaments, we should consider paragraph 2 of Article 3, which is arguably the most important article in the treaty. It refers to how the rules would have to take effect in national law. There is reference to the contracting parties putting in place at national level a correction mechanism. The final paragraph states that such correction mechanisms "shall fully respect the prerogatives of national parliaments". This sentence is ignored because it does not suit Deputies Richard Boyd Barrett and Catherine Murphy. Selective quotation of the treaty is wrong.

On the role of the European Commission, the document is replete with references to matters such as country specific measures being agreed by the Commission and refers to a timeframe being agreed with countries. This is not a process of dictation.

I should have been given time to press it. If I am not allowed to do so, there is something flawed in the Order of Business. If I table an amendment, I am entitled to have it disposed of. It cannot be presumed that the House will accept or reject an amendment.

In that case, I must ask how democratic is the House. If an amendment is tabled and the order is made in such a way that we talk ourselves out of time and are prevented from pressing the amendment, what is the point of having a Committee Stage debate?

As it is 1.30 p.m., I am required to put the following question in accordance with an order of the Dáil this day: "That sections 1 and 2, the Schedule, the Preamble and the Title are hereby agreed to in Committee and the Bill is accordingly reported to the House without amendment; Fourth Stage is hereby completed; and that the Bill is hereby passed."